Motion for reargument granted, and upon reargument, judgment reversed on the law, defendant's motion for suppression of showup identification granted, and new trial granted. Memorandum: We agree with defendant that the showup identification cannot be upheld pursuant to People v. Hicks ( 68 N.Y.2d 234) because the only theory advanced by the People at the suppression hearing and on appeal was that probable cause justified an arrest before defendant was taken to the scene for identification.
The action of the police may not be upheld on a theory not argued by the People before the suppression court (People v Johnson, 64 N.Y.2d 617, 619, n 2; People v. Dodt, 61 N.Y.2d 408, 416; People v. Knapp, 52 N.Y.2d 689, 699 [Jasen, J., concurring]). The People were not prevented from offering proof or advancing an appropriate legal theory by the suppression court's erroneous determination that the police had probable cause (cf., People v Crandall, 69 N.Y.2d 459).